The city of Boulder is considering what its energy future will look like. The goal it to acquire "clean, local and reliable" energy in the future, and one voter-approved option is to start a municipal utility. For more information on the history of this decision, click here.

News: Energy

Fox News' Jana Winter wins reprieve in theater shooting case

Fox News reporter Jana Winter arrives at Arapahoe County court on April 1, 2013. She could be put into jail at a hearing this week after refusing to reveal anonymous law enforcement sources to the court. (RJ Sangosti, The Denver Post)

A Fox News reporter who could face jail time if she refuses to testify about her sources in the Aurora theater shooting case has won a reprieve.

Judge Carlos A. Samour Jr. ruled Monday that he won't decide whether to order reporter Jana Winter to testify until he first decides whether the key clue in the case she was to testify about will be allowed as evidence. In doing so, Samour sided with an argument by Winter's lawyers that the testimony issue isn't "ripe" for ruling.

"The Court is not comfortable proceeding on an incomplete record," Samour wrote in his order Monday. "As soon as the record is adequate, the Court will move forward."

Samour was to decide during a hearing Wednesday whether to order Winter to testify, and he said at a hearing last week that she faced up to six months in jail if she refused to speak. The Wednesday hearing will go on, Samour said, but he will not make a final decision on the issue.

That means Winter may still have to make what Samour referred to in the earlier hearing as a "Hobson's choice" between preserving her career or staying out of jail. Winter has said that if she discloses her sources, it would violate her source's trust and ruin her ability to gather news.

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It is rare for journalists to face such a dilemma. As Wednesday's hearing loomed, journalism advocates across the country rallied around Winter, saying the showdown cut at the heart of a journalist's independence and First Amendment rights.

"If anonymous sources believe their identities can be dredged up in court, they will be less likely to disclose to the press information of vital public importance," Angela Greiling Keane, the president of the National Press Club, said in a statement Friday. "That's not a risk worth increasing."

The fight started in July, when Winter, who is based in New York, wrote a story about a notebook that theater shooting suspect James Holmes mailed to his psychiatrist. In the story, Winter cited two unidentified law enforcement sources who told her the notebook contains violent drawings and details of a murderous plot.

Holmes' lawyers were furious, saying the sources violated the case's gag order, and they filed a motion seeking sanctions against the prosecution for the leak. As part of that motion, they put several law enforcement officers on the witness stand, in a fruitless search for the leak. They then subpoenaed Winter even though the law contains protections against reporters having to reveal their sources.

At the same time, Holmes' attorneys argued that the notebook was protected by doctor-patient privilege and should not be evidence in the case. Both sides in the case ultimately agreed the notebook would remain off-limits until Holmes decides whether to raise a mental-health defense.

As long as the notebook is sealed, Samour ruled the issue isn't important enough to the case to overcome the protections Winter has against revealing her sources.

"If the notebook is not privileged and is ruled admissible, it may well prove to be a critical piece of evidence in the case," Samour wrote in his order. "On the other hand, if the Court concludes that the notebook is privileged and inadmissible, it is difficult to discern why the credibility of one or more of the ... witnesses would be of importance."

Colorado's shield law gives reporters strong protection against having to divulge their sources, said attorney Steven Zansberg, who has represented several new outlets, including The Denver Post and Fox News, on other issues in the theater shooting case. To overcome that protection, lawyers seeking to put a reporter on the stand must show that the information they want is centrally important to the case, that their interest in getting it outweighs the reporter's First Amendment rights in protecting it and that they can't get the information any other way.

"It is extremely unusual," Zansberg said, especially since the issue here is tangential to the case.

Reporters in Colorado are more commonly subpoenaed to give witness testimony at trial, Zansberg said. Nationally, some of the more high-profile instances of journalist subpoenas — such as the Valerie Plame leak case — involve national-security cases.

Though former New York Times reporter Judith Miller spent time behind bars for refusing to testify in the Plame case, it is rare for journalists to be put in jail. Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, said no reporters are in jail in America for refusing to testify.

While the situation facing Winter is uncommon, Leslie said such circumstances happen most often in cases like the theater shooting: high-profile local cases where judges are concerned about news reports influencing potential jurors.

Holmes' attorneys said the leak harmed Holmes' right to a fair trial, and Samour said he must also investigate whether any police officers perjured themselves during the earlier hearing when they said they weren't the source of the leak.

"I can't imagine the credibility of any witnesses being more important," Samour said during last week's hearing.

Winter, however, said sources would never trust her again if she testifies and said the public's right to know would be harmed.

Winter's attorneys last week successfully argued there are still other ways to find the leak. Samour told Holmes' lawyers to re-question one Aurora detective on Wednesday because they hadn't previously asked him everything they should have.

"I'm going to make sure the seeking party jumps through all the legal hoops that are required," Samour said.

John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/john_ingold

Ballot language:
In November, Boulder voters narrowly approved two ballot issues related to starting a municipal utility: 2B and 2C. You can read the full text of the ballot language on the city's website.

Issue 2B asked voters to increase the existing utility occupation tax by up to $1.9 million a year. The money from the tax, which will be collected from customers by Xcel Energy, will be used by the city to cover the costs of moving forward with forming a municipal utility, such as more studies and legal fees.

Issue 2C asked voters for permission to actually form a municipal utility. The language allows the city to sell the necessary bonds to take over the current system from Xcel, but it states that the city may only move forward with forming a municipal utility if it can start the utility with rates that are the same or cheaper than Xcel's.

Helpful Links:City of Boulder: This is where the city is aggregating all of its documents, meeting information and updates on Boulder s energy future: bouldercolorado.gov/energyfuture

RenewablesYes: This website is run by the group of volunteers that lobbied local voters to pass a utility occupation tax in November to replace the expiring franchise fee from Xcel Energy. Now, the group is advocating for the city to secure a cleaner, more local energy supply. renewablesyes.org

Xcel Energy: Xcel is the largest utility in Colorado, and it currently provides electricity to Boulder. The city s 20-year franchise agreement with Xcel expired at the end of 2010. xcelenergy.com

Boulder Smart Energy Coalition: A citizen group that supports the city's general energy goals but has concerns about the risks involved with starting a municipal utility. bouldersec.com

SmartGridCity: Xcel Energy has installed a smart grid in Boulder. This web site provides more information on that initiative. smartgridcity.xcelenergy.com

Colorado Association of Municipal Utilities: This Colorado Springs-based group represents the state s 29 municipal utilities, which include utilities based in Lyons and Longmont. coloradopublicpower.org